Condos and HOAs should be careful when creating occupancy restrictions

October 12th, 2012 by Jean Winters, Esq.

How many condos and HOAs contain covenants restricting the number of people that can reside in a unit/townhome or house? I have seen many. What is unclear is whether the drafters of these covenants checked the local municipality requirements for occupancy. If not, then there is a potential Fair Housing Act (FHA) violation.

Yesterday the Department of Justice (DOJ) filed a lawsuit in the Middle District of Florida against a townhome HOA in Gibsonton, Florida for violation of the FHA by discriminating against families with children.

The lawsuit was prompted by a complaint filed with the Department of Housing and Urban Development (HUD.) After the family moved in the HOA and the property management company told them that their 6 children exceeded the association’s limit of occupants in the home. However, the HOA’s restriction was considerably more stringent than the Hillsborough County occupancy restrictions based on a home’s size and configuration. As a result, HUD found that the association and property management company discriminated and referred the case to the DOJ which then filed the lawsuit.

HUD and the DOJ argue that association occupancy limits that are more restrictive than local standards are discriminatory.

Do your covenants have occupancy limitations and do you know if they are consistent with local county standards? Another question associations should ask is why duplicate what is already a municipal or county regulation? It opens the door to potential problems, especially if there is a difference that may be deemed discriminatory.

6 comments on this post.

Donald:

October 12th, 2012 at 8:41 am

This information conflicts somewhat with my current understanding of how the laws treat Condo Declarations. While I’m only somewhat familiar with the FHA laws, I would have assumed that anything that was in the Condo Declaration before they moved in would be enforceable. Condo’s often enact rules that are more strict the State Laws or County Ordiances but I always thought that if they were not discriminatory, then they were fair and enforceable.

Jean Winters, Esq.:

October 12th, 2012 at 10:12 am

That is common misperception.
A Dec that prohibits African Americans or Jews, for example, would be illegal and unenforceable. I say that only somewhat tongue in cheek because most modern decs do not. Yet a Dec contains covenants – not all may be enforceable. At one time, covenants were actually written into deeds and you can still see these in the public records (once in the public record they are there forever, just maybe not enforceable). Some of the deeds as recently as the 40s had provisions that the buyer could not sell to “Negroes” or Jews.

A Dec is a contract. Contracts are not always legal or enforceable – it can’t demand illegal acts or violate civil rights laws. Florida has held that enforcement of a Dec must be reasonable and not arbitrary and capricious.

Just as an FYI – not a bad idea to cite the county ordinance occupancy restrictions but not list them. Otherwise if the county changes it, then you will have to change your dec.

Many have been hearing about “impairment of contract” and how statutes can’t trump a contract. That isn’t always true.

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